tag:www.robertslawteam.com,2013-03-21:/blog/17412018-12-17T17:38:53ZMovable Type Enterprisetag:www.robertslawteam.com,2018:/blog//1741.35512672018-12-17T17:11:56Z2018-12-17T17:38:53Z
There's a saying: "He who rises high, falls far." And for rapper Tekashi69, the fall looks to be very far indeed.

At only 22 years old, Daniel Hernandez (a.k.a. "Tekashi69" or "6ix9ine") had a brutal childhood followed by an explosive rise to fame - and repeated troubles with the law. His first brush with the criminal justice system as an adult came in 2015, when the then-19-year-old pled guilty to a sex offense involving a 13-year-old. He was placed on probation as part of the plea deal.

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Then last month, just before the release of his first full-length album, Hernandez was arrested along with several other individuals for their alleged involvement in the Nine Trey Gangsta street gang, a sect of the Bloods. Hernandez faces six federal felony counts for racketeering, illegal use of a firearm, armed robbery and conspiracy to commit murder.

The last count alleges that Hernandez ordered a hit on someone who disrespected the gang, resulting in a bystander getting shot. The charges stem from a years-long investigation by the NYPD, the Bureau of Alcohol, Tobacco and Firearms, and the Department of Homeland Security.

His prison stay could be permanent

If convicted, Hernandez faces a minimum of 32 years in prison. A life sentence is also on the table.

Sentencing is still a long way off, however. The rapper is currently in federal prison awaiting trial. He was denied bail, which means he faces nearly a year behind bars before trial, set for September 2019.

Federal prosecutors have obtained a protective order to prevent evidence from public disclosure, which means it's difficult to speculate on Hernandez's outlook. TMZ reports that prosecutors have photos showing Hernandez's involvement. The rapper's own social media posts - including a video of him ordering a hit as well as references to the gang - may also play a key role against him.

His defense attorney has hinted that Hernandez's alleged gang involvement was merely for show, part of a bad-boy image he strived to cultivate. Yet the attorney also acknowledged that Hernandez had close associations with gang members. One served as his manager, and others were on his security detail.

Meanwhile, Hernandez's debut album, Dummy Boy, hit No. 2 on the charts and remains in the top 10. It's likely a small consolation for a career cut short.

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tag:www.robertslawteam.com,2018:/blog//1741.34857472018-10-23T16:08:06Z2018-10-23T16:17:59Z
Tommie Lee is no stranger to police. The 34-year-old mother of two and volatile star of Love & Hip Hop Atlanta has been arrested more than 30 times over the years. She's faced charges ranging from theft and disorderly conduct to forgery, battery and hijacking (of a bus, apparently). One of her daughters was even born in jail.

But now, the star has set a new record for herself: getting arrested not once, but twice within 24 hours.

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The initial arrest came after Lee allegedly slammed her daughter's head into a locker and pulled her hair at the child's Atlanta-area middle school. Charged with felony aggravated assault, first-degree child cruelty, battery and public-school disruption, she was booked and released on bail. A no-contact order was issued - standard procedure in these types of cases - directing Lee to avoid all contact (including phone calls) with her daughter.

Lee's aggressive, out-of-control behavior has been chronicled throughout her stint on Love & Hip Hop Atlanta. Both on camera and off, she has erupted into physical brawls with several of her costars, throwing punches and even attempting to run down a costar with her car. She was suspended at the end of last season after attacking producers and camera crew. Her struggles with alcoholism have created rifts with family members as well.

Lee's prior legal troubles might mean a heightened sentence. Currently held without bond, she's certainly giving her lawyers plenty of work to do on her behalf.

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tag:www.robertslawteam.com,2018:/blog//1741.34619302018-10-04T20:07:45Z2018-10-04T20:10:51Z
Cardi B, the "Bodack Yellow" rapper known for her aggressive, in-your-face style, is apparently aggressive in her personal life, too. She turned herself in to the NYPD on Monday for charges stemming from a violent altercation at a Queens strip club last August.

Cardi allegedly started the fight because she suspected that one of the club's employees had slept with her husband, rapper Offset (who's also the father of their three-month-old baby). The details surrounding the incident aren't totally clear. But, according to a police spokesperson, it culminated in chairs being thrown around - as well as bottles and hookahs.

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A history of brawling and shoe-throwing

This isn't the first time the 25-year-old has gotten into trouble with her temper. During New York Fashion Week in September, she hurled a red stiletto at singer Nicki Minaj (but missed). And during her stint as a star of the reality TV show Love & Hip Hop: New York, she flung a shoe at a costar and started a fight with one of the dancers.

Potential prison time

For this latest incident, Cardi faces misdemeanor charges of assault and reckless endangerment. A conviction could land her in jail for up to a year. That prospect terrifies her, according to In Touch Weekly, as it would mean separation from her young daughter.

As for her straying husband, Offset is staying by Cardi's side. Sources say he would be "crushed" if she ends up in prison.

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tag:www.robertslawteam.com,2018:/blog//1741.34155862018-08-29T20:22:10Z2018-08-29T20:23:29Z
Last Wednesday, a jury found former Trump campaign chairman Paul Manafort guilty of eight federal charges involving bank fraud and tax evasion. Yet jurors were unable to reach a consensus on the remaining ten counts, leading the judge to declare a mistrial on those charges.

Manafort's trial - the first resulting from Special Counsel Robert Mueller's investigation - played out in dramatic fashion, with deliberations dragging on for days. And the jury kept both sides guessing.

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Clarification on "reasonable doubt"

After the first day of deliberating, jurors sent the judge a note asking for, among other things, a clarified definition of "reasonable doubt." At the time, Manafort's defense attorney viewed the lengthy deliberations - and particularly the question about reasonable doubt - as "a good sign." Typically, the longer jurors deliberate, the less likely they are to reach an agreement. And the question about doubt perhaps indicated that they had doubts, but weren't sure how much weight to give them.

Still, the verdict in this case was a crushing blow for Manafort, who now faces up to 80 years in prison.

A tense and emotional process

The lengthy deliberations likely reflected the complex and high-stakes nature of the charges. In their note to the judge, the jury also asked for a list linking each exhibit to the corresponding charges. (The judge, as is typical, directed them to rely on their collective memories of the evidence at trial.) This suggests they may have found it difficult to wade through the voluminous paper trails.

According to one juror, who spoke to the media after the verdict, deliberations were tense and emotional - even to the point of tears. A self-professed Trump supporter, the juror admitted she didn't want to find Manafort guilty but couldn't deny the "overwhelming" evidence. She attributed the delay to a single holdout juror who couldn't be convinced of the remaining ten charges. Were it not for that juror, she claimed, Manafort would have been found guilty on all counts.

A window into deliberations

The Manafort case illustrates how tricky it can be to handle questions from a deliberating jury. As the impartial arbiter, the judge must take care not to influence the jury by way of response. Typically, both sides have an opportunity to weigh in before the judge provides a written reply or, in some cases, brings the jury back into the courtroom to deliver the response.

Questions from a jury also provide a window - albeit a hazy one - into their mindset during deliberations. Few other clues are available during this secretive process. As was the case here, the media often latches onto the questions, analyzing them from all angles, turning and inspecting them in the dim light of pre-verdict speculation.

But, as was also the case here, it's impossible to get a surefire read on any jury before they march back into the courtroom to deliver their decision. The suspense is part of what makes trials so intriguing - at least for those with no personal stake in the outcome. For defendants, however, it can be nearly unbearable.

More to come...

A verdict is far from the end of the road, of course. Appeals and postconviction proceedings can take months or years. And for Manafort, another trial on related counts will bring another round of suspenseful deliberations.

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tag:www.robertslawteam.com,2018:/blog//1741.33817302018-08-07T19:35:29Z2018-08-07T19:37:26Z
The trial of former Trump campaign chairman Paul Manafort is finally underway, and it provides a fascinating window into how prosecutors approach high-stakes cases.

In the first of two federal trials (with the second slated for September in D.C.), Manafort faces multiple counts of tax evasion and bank fraud. Prosecutors allege that he covered up millions of dollars of income and falsified documents to obtain millions in bank loans.

Much of their case hinges on witness testimony - much of which, in turn, hinges on immunity. Shortly before trial, five witnesses were granted immunity in exchange for their testimony against Manafort. All worked for financial institutions with various links to Manafort. And the star witness - Manafort's former "second-hand man," Rick Gates - secured immunity last winter as part of a plea deal.

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The complexities of immunity

The case illustrates the important role that witness immunity often plays in complex prosecutions. Witnesses can't be compelled to make incriminating statements on the stand. Immunity allows them to speak without jeopardizing their rights.

Many star witnesses - such as Rick Gates in the Manafort case - start out facing serious criminal charges themselves. As a result, they have a strong incentive to cooperate. But it's important to tread with care.

Not all immunity arrangements are equal. Broadly speaking, there are two types:

Transactional immunity: Also called "blanket" or "total" immunity, this type shields witnesses from prosecution for any criminal activities they testify about. It's the strongest type of immunity, but it's not available in the federal system.

Use and derivative use: Under this type of immunity, prosecutors can't use witnesses' incriminating statements to support criminal charges against them. Nor can prosecutors use any evidence derived from the immunized testimony. However, they're free to use independent evidence to prosecute the witness. This type of immunity isn't as strong as transactional, but it's more common.

Short-term immunity arrangements, typically outlined in "proffer letters," serve as preludes to formal grants of immunity. They allow witnesses to discuss (or "proffer") in broad strokes the information they possess, giving prosecutors a better sense of its value.

All types of immunity, however, have limits. Witnesses can still face perjury or obstruction charges for lying, and their statements can be used to undermine their credibility if they start backpedaling later.

Maximizing your leverage

Given the complexities of immunity - and the strategic considerations involved - it's not something to take lightly. Whether you're facing criminal charges, a formal investigation or a request for a sit-down with law enforcement, always consult with a defense attorney first. You may have valuable information that could be used as leverage - or used against you, if you're not careful. It takes an experienced legal mind to navigate these murky waters.

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tag:www.robertslawteam.com,2017:/blog//1741.30890282017-09-19T15:36:34Z2018-01-12T18:22:58Z"The dramatic video became another flashpoint in a national debate about police use of force and how officers treat civilians." - TIME

"So, I have this," Alex Wubbels said, referring to a printout she's holding. Alex is a nurse in a Salt Lake City hospital. Her unconscious patient lay on a bed nearby. The printout reads: Obtaining Blood Samples for Police Enforcement from Patients Suspected to be Under the Influence. For the better part of an hour, Detective Jeff Payne has tried to convince Alex that she should just let him draw her patient's blood.

Detective Payne evidently doesn't like being told no.

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"The three things that allow us to do that," Alex dared protest, "are if you have an electronic warrant, patient consent, or patient under arrest [...]. The patient can't consent, he's told me [the officer] repeatedly that he doesn't have a warrant, and the patient is not under arrest."

No warrant. No consent. No arrest.

"Okay," the officer responds. "So I take it without those in place, I'm not going to get blood. Am I fair to surmise that?"

Detective Payne should have surmised that on his own, but at this point, Alex's supervisor jumps in via speakerphone. He says that the officer is making a mistake, that he's shooting the messenger. That's when Detective Payne loses it: "We're done," he says to Alex. "You're under arrest." Watch the video and see Detective Payne charge Alex, push her out the doors of the hospital, and cuff her.

This is pure speculation, but as Detective Payne gave in to his frustration at being told no, and rushed forward to arrest Alex, he might've thought all this fuss was for no good reason. After all, Alex's patient wasn't a suspect, but an off-duty reserve police officer, who drove commercial trucks for a living. While on a delivery, the patient was hit by a suspect fleeing the Utah police (the suspect apparently died in the collision). Detective Payne simply wanted to clear the patient's name.

But the Fourth Amendment warrant requirement outweighs Detective Payne's frustration at being told no. Law enforcement expects us to follow the rules. We expect the same thing in return.

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tag:www.robertslawteam.com,2017:/blog//1741.30890032017-05-02T16:45:00Z2018-01-12T18:22:55ZRemoving the 'Millstone Around the Youth of Our State'

It's rare to see bipartisanship in action, but North Carolina state lawmakers are pulling it off. House Bill 280 increases the minimum age for adult prosecution. Right now, North Carolina is one of the last states in the nation to allow the prosecution of 16- and 17-year-olds as adults. This means that young people accused of certain crimes face harsher penalties, despite the fact that being an "adult" applies to people 18 and over.

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The NC Policy Watch blog quotes Judge Marion Warren:

"You have someone that commits an offense that you see is from the sheer folly of youth and lack of maturity, and that offense carries with them the rest of their lives. We put an Albatross or a millstone around the youth of our state when we give them an adult conviction."

Violent Felonies Excluded

House Bill 280 - appropriately named the Juvenile Justice Reinvestment Act - wouldn't let all young folks off the hook from adult prosecution. In general, the bill excludes violent felonies, which means that some 16- and 17-year-olds would still be prosecuted as adults. In many cases, though, this bill eliminates the significant and often years-long hardship in terms of loss of opportunities with work and school as a young person, owing to a criminal record as an adult.

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tag:www.robertslawteam.com,2016:/blog//1741.30889632016-10-05T21:02:59Z2018-01-12T18:22:52Z
You never thought you'd come face to face with agents of the U.S. Department of Agriculture. When you think of federal agents, the FBI comes to mind, or the DEA.

Certainly not the USDA, right?

Do you own a grocery or convenience store?

But if you own a grocery store, convenience store, or similar type of specialty store - and food stamp transactions are a source of business - the USDA is exactly the agency you could face.

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The offense is food stamp trafficking - and it could cost your business dearly.

What is food stamp trafficking?

You can find this offense under Title 7 of the Code of Federal Regulations. The law requires that you accept Electronic Benefit Transfer (EBT) payments only for "eligible food."

Food stamp trafficking occurs when your clerk or cashier issues cash to the customer in exchange for the customer's EBT payment.

This could easily happen to you. You don't even have to be present in the store. The USDA will hold the owner accountable, even if you had no knowledge of the offense.

For example, your cashier could succumb to pressure from friends or acquaintances to exchange $75 in cash for $150 in EBT benefits. This benefits the store's bottom line. At the same time, it benefits the EBT customer, who is no longer limited to buying only "eligible food" with his or her cash.

Under the law, the store owner is 100% responsible for the illegal conduct of his or her employees - and could subject you to punishment - even if this type of transaction happens just one time.

What is the punishment for food stamp trafficking?

The USDA could permanently disqualify you from accepting EBT payments.

Any future stores you plan to open might also be disqualified.

You could face a fine for selling or attempting to transfer ownership of your store as a "de facto" attempt to avoid disqualification.

Call 866-630-2389 to learn how to avoid disqualification.

At Roberts Law Group, PLLC, we've successfully defended clients cited with various types of EBT violations. In other words, we can help preserve your ability to continue collecting EBT as a form of payment - and keep your business alive and profitable.

Well, you can't exactly "get out" of them, but for some North Carolina drivers facing certain types of moving violations, the powers-that-be in Wake County just made a few changes that will result in better outcomes for some of our clients.

These are the moving violations:

Driving while license revoked (DWLR)

Speeding in general

Speeding in a school zone

If you've been cited for one of these offenses in Wake County, keep reading to learn more about your eligibility, then give us a call (866-630-2389) to see how we can help you.

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Dismiss DWLR (Class 3 Misdemeanor)

You MAY be able to get this violation dismissed IF:

Your license was revoked solely for failure to appear (FTA) in court or nonpayment of a citation

Your license was revoked because of FTA on, or non-payment of, no more 2 citations (that is, if your license is revoked for failure to pay/appear on 3 or more citations, you are technically ineligible).

You do not have a prior conviction for driving while license revoked

Your license has been reinstated

You are "genuinely trying to come into compliance"

Reduce Some Speeding Tickets to Improper Equipment Tickets

You MAY be able to reduce your speeding ticket to an "improper equipment" ticket IF:

You provide a certified driving record

You haven't had more than one other moving violation in the past three years (and no more than three moving violations in 10 years)

You complete a four-hour driving course if you're under 21

You weren't cited for driving more than 85 mph or more than 20 mph over the limit (work zones and school zones disqualify you)

You did not previously reduce a speeding ticket to improper equipment in the past three years

You pay applicable costs, fees, and fines

You resolve your case in "disposition court" (courtroom 101) by your third court date. (Note if your speeding case has already been continued for more than three court dates, or you case has already been moved out of disposition court, we can still help eligible drivers get their tickets reduced if we are contacted before June 23, 2015)

Tickets for Speeding in School Zones

You MAY be able to receive a PJC (prayer for judgment continued) on your speeding in a school zone case IF:

You weren't going more than 15 mph above the school zone speed limit

You have no other traffic violations in the past three years

You have never been charged with speeding in a school zone before (this is your first school zone offense)

You complete community service as directed by the judge or magistrate

Previously in Wake County, the State would not consent to a PJC in any school zone speeding case. Under the new policy, the State will consent to a PJC if the requirements above are satisfied. This means that your case can be resolved faster and more favorably. Speeding in a school zone carries 3 DMV points and 1 insurance point (typically resulting in a 30% increase in insurance costs). With a PJC, DMV and insurance points are avoided completely.

Need Help With Your Ticket? Call 866-630-2389.

If you're facing one of the moving violations above, call us at 866-630-2389 for a consultation. It's absolutely free to talk with us. If we determine that you are eligible for relief under Wake County's new traffic policies, you could resolve your traffic ticket in disposition court, and end up with a better outcome. Even if you aren't eligible, legal representation may help to improve your situation.

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Too bad, officer. If your drug dog isn't handy, you can't keep the driver waiting. According to Julian Hattem with the Hill, the U.S. Supreme Court ruled yesterday that officers cannot keep someone waiting or detained - absent probable cause - after the officer has already dealt with the original issue, such as having issued a ticket for speeding.

As Justice Ruth Bader Ginsburg wrote, "We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution's shield against unreasonable seizures."

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In the case at hand, a driver was pulled over for "erratic driving," and the officer issued the driver a warning. The officer then asked the driver if he could have a drug-sniffing dog check the vehicle. Despite the driver's refusal, the officer made the driver wait until the dog's arrival. The dog found methamphetamine.

Again, Ginsburg: "[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission' - to address the traffic violation that warranted the stop. Authority for the seizure thus ends when tasks tied to the traffic infraction are - or reasonably should have been - completed."

It could have gone the other way. As Hattem reports, Justice Clarence Thomas argued that making a suspect wait a few extra minutes isn't a violation of the Fourth Amendment, in the context of reasonable suspicion. To prohibit an officer from taking time to retrieve the drug dog (thus making the driver wait), argued Thomas, blurs the line between reasonable suspicion and probable cause.

As it happened, the ruling is important because every victory for the private citizen, in the context of the Constitution and the Fourth Amendment's prohibition against unreasonable search and seizure, helps safeguard against governmental overreach. Preventing police officers from doing more than what the original traffic stop calls for seems to be a matter of good policy.

(Image credit: https://flic.kr/p/8Nejxo)

You've heard of preventive medicine. In general, preventive medicine is the idea that you can take steps to manage or even prevent injury and illness by proactively taking care of your health through diet, exercise, etc.

Have you heard of preventive law?

As a concept, preventive law has been around for a while, but it's not nearly as commonplace as preventive medicine. With preventive law, you try to find ways to stop potential legal problems from becoming worse. In the best of circumstances, preventive law might even stop a legal problem from happening in the first place.

Take criminal charges, as one example.

If only you had known about preventive law and taken advantage of it ahead of time. It's quite possible that (1) you already would have known who to call when you got in trouble and (2) you may have prevented the situation from getting worse than it already is.

Consider Who You Are: Parent, Student, Coworker, Business Owner

You could be all of these. The point is that knowing who you are will point you down the right path in terms of finding the lawyer whose advice and guidance you need.

CNN's Kelly Wallace quotes the author of On Your Case: A Compassionate (and Only Slightly Bossy) Legal Guide for Every Stage of a Woman's Life. "I have now two young adults," author Lisa Green said, "and when they were going through their teenage years, it was a simple matter of a party that went wrong, a group of kids in the park when the police stop by and have some questions, bringing something to school they shouldn't have."

Here's the key take-away:

"[A] little bit of knowledge of the law, a little bit of knowledge of what their rights are, the right way to behave, would have saved parents a heck of a lot of grief."

For a parent, the motto here is that criminal charges do happen to kids. Parents should be prepared.

What You Do for a Living

The seminal example is that of a truck driver. Truck drivers depend on their commercial driver's licenses for their livelihood. All it takes is a few mistakes - or one major one, like a fatal alcohol-related wreck - to put your CDL in jeopardy.

The same goes in every other profession: A mortgage broker who, knowingly or unknowingly, pushes boundaries in making the sale. A young teacher tempted by the prospect of entering into a sexual relationship with a current or former student.

It would help to know who to call after you've been accused of crossing the line.

The Problems You're Most Likely to Face: You Don't Know What You Don't Know

This last point ties into the first two. But it is also the most difficult. You may have an idea as to how to approach preventive law if you know who you are in life and what types of mistakes you could make based on what you do for a living.

But you don't know what you don't know, which is probably the best argument for preventive law - for getting advice and counsel from a lawyer ahead of time - that there is.

Call Roberts Law Group, PLLC

If you or a loved one is facing an investigation from state or federal authorities, or you've been formally charged with a crime, call Patrick Roberts today at 866-630-2389. Based in Raleigh and Charlotte, North Carolina, Patrick Roberts represents clients throughout the state and in select federal cases nationwide.

SECOND AMENDMENT: SUBJECT OF HOT DEBATE

Debating the Second Amendment is not something we will do here. All we will say is that the Second Amendment is open to interpretation based on history and context. Well-meaning people can argue that the average law-abiding citizen has the inviolable right to own or possess a firearm. Other well-meaning people may argue that the right only goes so far, or does not apply to the individual citizen at all.

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THIS READER'S COMMENT IS AN EXAMPLE

A reader's comment on our Facebook page said that we "should know better" (because we're a law firm) than to claim that citizens have a constitutional right to keep and bear arms, as in own or possess a personal firearm. He argued that the text of the Second Amendment, circa 1791, meant that citizens have a right to store and bear arms for the time when the militia calls them into military service.

We won't argue with him. He may be right.

But the U.S. Supreme Court has not given the Second Amendment that meaning through its current interpretation. Nor have the majority of lower courts and state legislatures over the course of U.S. history. Suffice it to say, individual citizens today have a legal right to own and possess a firearm for personal defense, for use as a hobby, to hunt, etc.

RESTORING YOUR GUN RIGHTS UNDER NORTH CAROLINA LAW

We can debate the Second Amendment until we're blue in the face. But the fact remains that one group of "law abiding" American citizens may own or possess a firearm and another rather large group of people (those once convicted of a felony offense) may not. This second group may not legally own or possess for any reason, even if they are otherwise law abiding and nonviolent. Even if they pose no real threat to public safety.

As we explained in Part II of this series, North Carolina's firearms rights restoration process allows for certain citizens to once again legally own or possess a firearm. In general, three requirements largely determine whether you're a good candidate for restoration (see Part II for more).

THE CONSTITUTIONAL ARGUMENT

What happens if you are rejected? What happens if it's a "close case"? For example, having committed two felonies (rather than just one) would disqualify a person under the five-factor test (even if the felonies were both nonviolent), but does not by itself necessarily show that the person poses a threat to public safety. It may be worth making a constitutional claim. To be clear, this is not the usual course of action, but we are ready and prepared to do so in the right circumstances.

In general, the argument is that the five-factor test is too narrow, and that the proper standard is for the court to make its determination based on an individual, case-by-case basis, looking at all the facts and circumstances, not just whether the petitioner satisfies five factors. The court would determine whether, in the face of evidence showing otherwise, that the petitioner is "in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety," as the North Carolina Supreme Court wrote in the case of Britt v. State.

WHY WE ARE ADVERTISING FOR THESE CASES

If our series on firearms rights restoration was in any way helpful to you, and you're wondering whether you have a shot at restoring your rights in North Carolina, give us a call at 866-630-2389.

Our "sales pitch" is simple: We believe in due process and fairness for everyone, even those society calls "criminals." And we believe that we can help people who made a mistake in the past, but who turned their lives around, restore their rights to responsible gun possession and ownership.

Roberts Law Group, PLLC is a law firm of state and federal criminal defense attorneys based in Raleigh and Charlotte, North Carolina. We serve clients throughout the state and nationwide in select cases. Click here for Part I and Part II of our series on firearms rights restoration.

Here is what you need to know. In general, you are only eligible to file a petition if you meet the following requirements:

You can only have a single felony conviction on your record (or multiple convictions from the same incident in some circumstances).

The felony must be non-violent.

It must have been at least 20 years since your felony conviction.

If you believe you meet these requirements, it might be possible to restore your right to own or possess a firearm in North Carolina. Continue reading to learn more about the process.

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For One North Carolina Man, Permanent Ban on Firearms Ruled Unconstitutional

In Part I, we offered a brief history of the right to keep and bear arms in North Carolina, and mentioned the five-factor test that must be satisfied before the court will restore your rights. To learn more, let's first look at the case of Britt v. State, in which the Supreme Court of North Carolina, roughly six years ago in 2009, decided in favor of a convicted felon who sought to have his rights restored.

About five years before Britt v. State, North Carolina lawmakers delivered a blow to the right to own or possess a firearm. Convicted felons (subject to the facts and circumstances of their particular offense) have long known that their right to own or possess a firearm will vanish for at least a certain number of years after the offense took place. In 2004, lawmakers pushed that idea further by amending the Felony Firearms Act to revoke the right permanently.

But, as it turns out, the blow wasn't fatal.

In the Britt case, the state's highest court ruled that the legislature's permanent ban was unconstitutional as applied in the plaintiff's case. As the Court wrote, "[I]t is unreasonable to assert that a nonviolent citizen who has responsibly, safely, and legally owned and used firearms for seventeen years is in reality so dangerous that any possession at all of a firearm would pose a significant threat to public safety."

The Five-Factor Test

The Britt ruling paved the way for the five-factor test we know today. In the 2009 case of State v. Whitaker, the North Carolina Court of Appeals considered the Supreme Court's Britt analysis and created the five-factor test. Then in 2010, North Carolina lawmakers once again amended the Felony Firearms Act, incorporating the five factors.

These five factors are:

The type of felony offense and whether it was violent or nonviolent in nature.

How long ago the felony offense took place.

The petitioner's history of "law-abiding" behavior since his or her conviction and sentence.

The petitioner's history with firearms in regard to responsible and lawful use.

Whether the petitioner proactively complied with the 2004 amendment to the Felony Firearms Act, which required convicted felons to give up their firearms.

The law requires all five factors to be satisfied, but under the Britt standard of deciding cases based on their unique facts and circumstances (looking at whether the petitioner actually poses a threat to public safety) it is possible to restore your rights even if one or more factors are not satisfied.

In Part III of this series, we will discuss the constitutional argument toward restoring your right to own or possess a firearm, which goes beyond the five-factor test.

Call Roberts Law Group, PLLC at 866-630-2389 Today to Discuss Filing a Petition

Under North Carolina's firearms rights restoration process, you have a chance at restoring your right to keep and bear arms. If you appear eligible, we can help you file a petition with the court.

The Second Amendment: Right to Keep and Bear Arms

Of course, in any post concerning firearms rights, you're going to hear about the Second Amendment to the U.S. Constitution. It reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The recent and more widely known debate about firearms concerns whether the Second Amendment protects the right of citizens to keep and bear firearms of any and all types, even those (like assault rifles) that can cause major harm in the wrong hands.

But there's another issue concerning the Second Amendment that's no less important.

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Banning Every Felony Offender for Life Is Unconstitutional

The fundamental constitutional presumption is that every citizen in North Carolina has a right to keep and bear arms, and that this right should not be revoked permanently for an entire group of citizens (all those with a felony on their records) without some avenue toward due process. In other words, an individual petitioning for his or her firearms rights should have the case examined under its particular facts and circumstances. Under North Carolina law, though, history has shown that any felony conviction will result in the loss of your right to keep and bear arms.

ANY Felony Conviction

That's any felony conviction, even the non-violent crimes, even those offenses bearing no relationship whatsoever to guns. You lose your right to own or possess a firearm. That means no gun for personal defense at home or in public. No gun for target shooting at the range. No gun for hunting. No gun for any purpose.

The law has put further and further restrictions on the right to keep and bear arms. At one point in recent history, North Carolina residents convicted of any felony would lose their right to own or possess a firearm for their entire lives (that was in 2004, when state lawmakers overruled a provision in the North Carolina Felony Firearms Act that had allowed for automatic firearms rights restoration in certain cases).

Only recently has this begun to change.

File a Petition to Have Your Rights Restored

There is now a chance that you can get your rights to own or possess restored. It's a rather strict five-factor qualification process, but it is possible for some North Carolina citizens to file a successful petition. (Call us today at 866-630-2389 if you have any questions about this process.)

Stay Tuned

In Part II of this series, we will discuss the first avenue toward restoring your gun rights: North Carolina's restoration process, which includes the five factors that you generally must satisfy in order to succeed (but not always, as we will explain).

In Part III, we will discuss the second avenue: the possibility of bringing a constitutional challenge under the Second Amendment, colloquially known as a Britt challenge, named after the 2009 case Britt v. State, in which a North Carolina man managed to bring a successful constitutional challenge to have his rights restored.

(Image credit: https://flic.kr/p/crjs97)

The State of North Carolina has recently joined a growing contingent of states to address the surging numbers of veterans entering the criminal justice system by opening a Veterans Treatment Court. Considering that North Carolina contains massive military installations such as Fort Bragg and Camp Lejune (and recent estimates indicate that nearly 35% of North Carolinians are active duty military, veterans, or dependents), the institution of a Veterans Treatment Court in North Carolina is of paramount importance and provides an incredible tool to defense attorneys throughout the State.

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The program, which is funded by a grant from Governor Pat McCrory's Crime Commission, will focus on former service members who enter the criminal justice system after struggling with common post-service mental and physical problems such as drug and alcohol addiction, post traumatic stress disorder (PTSD) and Traumatic Brain Injury (TBI).

The Treatment Court will incentivize participants to turn their lives around by requiring an extremely intensive form of probation supervision and treatment in exchange for reduced or dismissed criminal charges upon successful completion. From a defense standpoint, entry into the program will likely be governed by agreement with the applicable district attorney's office prosecuting the underlying criminal charges, similar to other deferred prosecution programs already in existence.

According to my recent conversation with program coordinator Mark Teachey in Harnett County, the program contains five phases and takes approximately 15 to 24 months to complete if the participant is fully compliant with no violations.

The program is not for the faint of heart as it requires the defendant to appear before the Treatment Court judge up to once per week for the first 24 weeks of the program. However, one extremely beneficial aspect of the program for defendants around the State is that your particular county need not have a Veterans Treatment Court in order for the case to be referred to the program. There is already one notable success story of a Mecklenburg County DWI defendant successfully completing the program in Harnett County, but obviously this requires frequent travel for both the defendant and defense counsel.

Eligibility for the program is based on the severity of the offense charged and the type of discharge the participant received from the military. In my conversation with Mr. Teachey, he indicated that the program accepts defendants charged with H/I felonies as well as misdemeanors, meaning that the large majority of veterans charged with low to mid grade drug offenses should be eligible.

The North Carolina School of Government's Jamie Markham recently blogged on this topic on the school's popular Criminal Law Blog, noting that

"[l]egally, veterans treatment courts are probably therapeutic courts as defined in G.S. 7A-272(f)-'a court, other than drug treatment court . . . , in which a criminal defendant, either as a condition of probation or pursuant to a deferred prosecution agreement under G.S. 15A-1341, is ordered to participate in specified activities designed to address underlying problems of substance abuse and mental illness that contribute to the person's criminal activity.'"

The Treatment Court has already enjoyed a successful first year at the pilot program in Harnett County, which graduated its first class of successful veterans in November 2014. The second Veterans Treatment Court recently opened in Cumberland County, and there are plans to add up to ten additional locations in 2015, with preference going to counties containing the State's larger VA Medical Centers, such as Durham.

If you or someone you know is a veteran who has been charged with a crime in North Carolina, contact criminal defense attorney Kevin Marcilliat for a free consultation. Kevin Marcilliat is a skilled criminal attorney who defends clients charged with DWI, drug offenses, and property crimes, among others, in state and federal courts throughout North Carolina. To contact criminal lawyer Kevin Marcilliat, please contact the law firm or call 866-630-2389 for a free consultation. Roberts Law Group can also be followed on Facebook at facebook.com/nc.criminal.defense.